The US Eighth Circuit Court of Appeals declined Tuesday to rehear with the full Eighth Circuit panel of judges a prior appeals court decision curtailing private organizations’ ability to sue under section two of the Voting Rights Act for alleged racial gerrymandering in redistricting decisions.

In the order denying the rehearing, Judge David Stras, writing for the majority, stated, “I, for one, have no doubt that the district judge, the panel, and this court have been ‘dispassionate arbiter[s] of [the] issues’ actually ‘presented by the parties,’ even if reasonable minds might disagree about the right answer.” Judge Steven Colloton and Judge Jane Kelly dissented to the denial of the rehearing, with Judge Colloton writing, “[t]he panel’s error is evident, but the court regrettably misses an opportunity to reaffirm its role as a dispassionate arbiter of issues that are properly presented by the parties.”

The American Civil Liberties Union (ACLU), which brought the initial appeal and request for rehearing, criticized the court’s order, with the Director of the ACLU’s Voting Rights Project Sophia Lin Lakin, who also argued the original appeal, stating:

The Eighth Circuit Court of Appeals had a critical opportunity to reverse the panel’s radical and dangerous ruling. That it chose not to rehear the case ignores the gravity of what’s at stake — generations of precedent protecting voters and in turn our democracy.

Attorney General of Arkansas Tim Griffin, whose office represented the Arkansas Board of Apportionment in the case, celebrated the order, writing, “Arkansas’s redistricting process is done by Arkansans elected by their fellow Arkansans. This decision is a win for our citizens and sends a message that the rule of law governs in Arkansas.”

The case began in 2021, when the ACLU, the Arkansas State Conference of the NAACP and the Arkansas Public Policy Panel filed suit against the Arkansas Board of Apportionment alleging the Arkansas reapportionment plan was racially gerrymandered under section two of the Voting Rights Act. In 2022, the US District Court Eastern District of Arkansas Central Division ruled in favor of the Arkansas Board of Apportionment, stating that the Attorney General of the US must be a plaintiff in section two cases. The plaintiffs then appealed the district court’s decision. Then, in 2023, a limited panel of the Eighth Circuit upheld the district court’s decision. Under the Federal Rules of Appellate Procedure (FRAP), if a limited federal court of appeals panel issues a ruling, either the plaintiffs or the defendants may then request a rehearing before the entire full panel of that circuit. So, in late 2023, the plaintiffs requested a rehearing en banc, or with the full Eighth Circuit Court of Appeals panel.

The ruling comes as racial gerrymandering rulings and controversies have proliferated ahead of the upcoming presidential primaries and the 2024 general election in November. In late 2023, the Georgia Republican Legislature Leadership released its controversial new redistricting maps in the midst of ongoing section two litigation. In North Carolina, the NAACP, Common Cause NC and several Black voters filed suit against the state legislature, claiming the state’s newly released redistricting maps violated section two. Only two weeks ago, US District Chief Judge Peter D. Welte ordered the creation of a new joint North Dakota legislative district for two Native American tribes on Monday, in the latest development in the ongoing section two litigation in the state.